합병평가차익에 대한 과세 -대법원 2018. 5. 11. 선고 2015두41463 판결을 중심으로-

The Taxation on Merger Assessment Gain - Regarding Supreme Court’s decision, 2015du41463, 2018.5.11 -

Recently, the Supreme Court of Korea decided Merger Assessment Gain(MSG) can be taxed only when a certain MSG has positive asset value(2015du41463, 2018. 5. 11.). Merging companies usually issue their new stocks to extinguished companies’ shareholders. If values of the new stock’s value were over fair market values of net assets which were transferred to a merging company from an extinguished company, that difference(the Diferrence) would happen to become gains to an extinguished company and also they would become goodwill to a merging company. In case of 2015du41463, the Supreme Court held that goodwill did not have any asset values. Therefore, the Court decided MSG of such a goowill not to be a taxable revenue. The above decision of the Supreme Court, however, is hard to be supported, because it was based on misunderstanding of purposes of MSG taxation. The Diferrence constitutes taxable income to extinguished company, therefore, it has to be taxed when merged. However, such taxation can give adverse effects to merger promotion. Therefore, the Corporate Tax Act(CTA) rules are as follows. The Diferrence shall not be taxed to extinguished company at the time of merger. Instead, such Diferrence shall be taxed to a merging company under the name of MSG. MSG cannot be taxed either when merged. Instead, after the merger, MSG shall be taxed over several years through depreciation or sale out of transferred asset. Through that process, the gain of extinguished company can be taxed under the name of MSG, and taxation over several years after the merger can remove adverse effect on merger promotion This means that taxation to the MSG taxation is related with whether or not an extingushed company would have gains from merging. Therefore, regardless of asset values of goodwill or other asset transferred to merging company, MSG has to be taxed to merging company.